Minister v. Madison Ave. Bldg. Co.

• Decision Date: 25 February 1915
• Citation: 108 N.E. 444,214 N.Y. 268
• Parties: MINISTER, ETC., REFORMED PROTES TANT DUTCH CHURCH IN GARDEN ST . v. MADISON AVE. BLDG. CO., Inc.
• Court: New York Court of Appeals Court of Appeals

214 N.Y. 268

108 N.E. 444

MINISTER, ETC., REFORMED PROTES TANT DUTCH CHURCH IN GARDEN ST .

v.MADISON AVE. BLDG. CO., Inc.

Court of Appeals of New York.

Feb. 25, 1915.

Appeal from Supreme Court, Appellate Division, First Department.

Submission of controversy between the Minister, Elders, and Deacons of the Reformed Protestant Dutch Church in Garden Street in the City of New York, commonly known as South Church, and the Madison Avenue Building Company, Incorporated, in which the Murray Hill Association, Incorporated, intervened. From a judgment of the Appellate Division for plaintiff (163 App. Div. 359,148 N. Y. Supp. 519), defendant appeals. Affirmed.Admund L. Baylies, of New York City, for appellant and intervener.

Jabish Holmes, of New York City, for respondent.

HISCOCK, J.

We are called on to determine whether the Appellate Division decided correctly in a controversy submitted to it that the appellant must carry out a contractmade by its assignor and representative with the respondent for the purchase of certain premises owned by the latter, and which inquiry involves the construction of a restrictive covenant.

The premises are situated at the corner of Madison avenue and Thirty-Eighth street, in what is frequently known as the Murray Hill district, in the city of New York. It appears that all of the buildings in the block, which includes the premises, outside of respondent's church building, are private dwelling houses designed for occupation by one family only, and which fully comply with the restrictive covenant hereinafter quoted. The proposed purchaser desired the premises as a site for a large apartment house, and the contract fully provided that it should not be enforceable if such restriction, concededly applicable to the lands in question, prevented the erection thereon of such an apartment house or would render the premises unmarketable in view of such use.

[1] The restriction which the parties thus considered and which has furnished this controversy was adopted by Mary Murray and others in 1847, when they were the owners of a large tract, including the premises. It provided that:

‘Neither of them [said parties and owners] nor his heirs and assigns shall or will at any time hereafter erect or cause to be erected upon any of the lots owned by them respectively or any part of the same any building or erection other than brick or stone dwelling houses of at least two stories in height and with the ordinary yard appurtenances to dwelling houses, and except churches and stables of brick or stone for private dwellings, and, further, that they will not hereafter erect or permit upon such lots or any part of the same any livery stable, slaughterhouses,’ etc.

The precise question is whether an apartment house will be a ‘dwelling house’ within the meaning of this provision; for there is no objection to the form, style, character or construction of the proposed building other than that it is to be an apartment house accommodating many families, instead of a dwelling house intended for occupation by a single family.

It seems very clear that the simple term ‘dwelling house,’ used in this covenant, is broad enough to include and permit an apartment house. We require little aid from dictionaries or decisions to enable us to see that, within the ordinary meaning of language, a ‘dwelling house’ is a house or structure in which people dwell, and such, concededly, are the character and purpose of an apartment house. There is no way in which we can fairly ingraft upon these particular words considered by themselves any further limitations of definition which would make a structure used for ordinary dwelling purposes more or less a dwelling house merely because of the number of people who dwelt in it. I think that the appellant really concedes this, but it urges upon us that the words ‘dwelling house’ in this particular case are to be used as though they were ‘private dwelling house,’ thereby meaning a building designed for occupation by one family only, and in which case the term doubtless would exclude an apartment house. The contention for this interpretation is substantially based upon three reasons.

[2] The first one is that all of the other dwelling houses in the block where these premises lie are designed for single families; wherefrom it is urged that a practical construction has been placed on the covenant which is binding upon the present purchaser. There may be considerable doubt whether the fact that residents of this district up to a certain point of business and residential development in the city have failed to erect apartment houses would be any proof of an understanding or belief that such a house could not be erected when the owner thought the time had arrived for so doing . Possibly a party who was endeavoring to erect a building which was objected to as violating some covenant of uncertain meaning might, under certain circumstances, give evidence that buildings like this had been erected in a neighborhood under the same restriction without objection as indicating a common understanding of what the restriction meant. But it is much more doubtful whether evidence would be permissible that people had not exercised certain rights as a means of proving that they did not possess the rights when such failure of exercise might be entirely due to other causes. But, aside from this, of course the rule of practical construction is only applicable when the language which is the subject of construction is of dubious meaning, and that we do not believe to be the case here. We think the words ‘dwelling house’ are of too plain and certain a meaning to permit their interpretation to be governed by evidence of what people have done or thought under or about them.

[3][4] The second basis of appellant's contention is that at the time when this covenant was drafted and put into operation no such thing was known as an apartment house, but this district, so far as occupied at all, was occupied by private residences, and that therefore the parties had in mind, and the contract should be interpreted as meaning, such dwelling houses as then existed, and excluding the modern apartment house. This contention also is too fallible to survive careful consideration .

Where a covenant in plain and complete language limits the use of real estate to the erection of a certain and general class of buildings by reference to their fundamental purposes, as dwelling houses, the law will not still further extend the restriction by enforcing it against all but a limited variety of such buildings which happened to be in sue when the covenant was made. The general rule of law applicable to such a covenant is against such a construction; for it requires it to be construed strictly against, rather than liberally in favor of, the grantor .

I do not think that the parties who originated the present restriction expected any such interpretation as is now urged. It is true that at that time apartment houses were not known, although a cheaper form of community dwelling house-the tenement house-was. But the people who made the contract knew of the developments through which dwelling houses had passed before attainment of the houses which then largely prevailed in the quarter in question, and, of course, they...